Citation: Nagy v Aviva General Insurance Company of Canada, 2022 ONLAT 19-010386/AABS

Licence Appeal Tribunal File Number: 19-010386/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Ana-Delia Nagy

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Alicia Stuart, Counsel

For the Respondent:

Marcin Panasewicz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ana-Delia Nagy (the applicant) was injured in an accident on May 29, 2016, when the car she was driving was struck while she was at an intersection. The applicant sought various benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'')¹. The applicant was denied certain benefits by the respondent, Aviva General Insurance Company of Canada (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2Aviva denied the applicant’s claims because it took the position that the disputed treatment plans are not reasonable and necessary.

ISSUES

3The issues I am asked to determine are:

1. Is the applicant entitled to $1,724.14 for chiropractic and physiotherapy treatment recommended by Patrick Walsh in a treatment plan (OCF-18) denied on June 22, 2018?

2. Is applicant entitled to $1,496.76 for occupational therapy recommended by Pursuit Health Management in a treatment plan (OCF18) denied on May 14,2018?

3. Is the applicant entitled to interest on any overdue payment of benefits?

Result

4Based on the evidence before me, I find that the applicant is not entitled to the disputed treatment plans.

5As a result, the applicant is not entitled to interest.

OVERVIEW

6The applicant visited an after-hours clinic two days after the collision and was prescribed painkillers and advised to follow-up with her family physician. She visited her family doctor and was diagnosed with soft tissue injuries and referred to physiotherapy. She was also given NSAID’s after the accident. The applicant started treatments afterward and visited a clinic twice a week and then tapered down. She received acupuncture treatments and physical therapy at the clinic. She attended therapy for approximately one year and started treatments with chiropractor Dr. Patrick Walsh, in August 2017.

LAW and ANALYSIS

The applicant’s entitlement to $1,724.14 for chiropractic and physiotherapy treatment

7I find on the evidence that the applicant is not entitled to the treatment plan for chiropractic and physiotherapy treatment, as it is not reasonable and necessary.

8In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to sections 14 to 16. An OCF-18 was completed by chiropractor, Dr. Patrick Walsh on May 24, 2018. The purpose of the treatment plan was for the applicant to undergo 10 sessions of physical rehabilitation and 8 sessions of therapy for multiple body sites. The OCF-18 noted that the trauma suffered to the knee and hamstring affect her ability to walk for great distances, and affect her exercising (yoga, and fitness classes) and is a concern while traveling.

9Aviva denied the treatment plan relying on physician Dr. Mohammed Khaled’s previous Insurer Examination (IE) assessment on February 7, 2018 and his paper review dated May 25, 2018 (further discussed below). Dr. Khaled did not provide an opinion on this particular OCF-18.

10Aviva submits that the applicant only agreed to undergo an in-person IE with Dr. Khaled on November 18, 2020 for another OCF-18 for similar treatment and recommended by the same practitioner (not in dispute in this application). Aviva submits that Dr. Khaled’s most recent IE (November 18, 2020) resulted in similar findings as those found in his previous IE reports from February and May 2018.

11The IE report completed by Dr. Khaled on March 14, 2018 reviewed the applicability of the Minor Injury Guideline² and whether the unapproved portion of a treatment plan for chiropractic therapy and message therapy was reasonable and necessary. The treatment plan was dated September 8, 2017, in the amount of $1,536.53 and was also recommended by Dr. Walsh. In dispute was physical rehabilitation in the amount of $112.81. Dr. Khaled found that as a result of the subject accident, the applicant had developed persisting left thigh and upper leg pains, with evidence of contusion and hematoma which had likely resolved. Dr. Khaled found this treatment plan not reasonable and necessary. He concluded that the applicant has had appropriate and adequate treatment for these injuries and that further therapy of this nature is not reasonable and necessary.

12The applicant submits that she started receiving treatments from Dr. Walsh in August 2017 in relation to this accident. The records show that the applicant had been receiving treatment as early as 2015 (prior to the accident). A progress note from December 14, 2015 (the earliest record provided from Dr. Walsh) indicates that “her left shoulder showed no improvement from the last visit”. The applicant’s last visit before the accident was March 9, 2016 and the notes indicate that “her left shoulder remained unchanged since the last visit”. There was a break in treatment between March 2016 and August 2017, when the applicant was receiving treatment elsewhere. Her first visit with Dr. Walsh post accident was August 14, 2017 where he noted “her left shoulder continued unchanged since last visit”.

13In her reply submissions the applicant raised for the first time that she is suffering from chronic pain and that with “the plethora of medical records chronicling the applicant’s ongoing sequelae, that these treatment plans were reasonable and necessary given her diagnosis of chronic pain”.

14Based on the evidence before me, I am not persuaded that this treatment plan is reasonable and necessary. The OCF-18 in dispute only list soft tissue injuries and did not list any barriers to recovery. Dr. Khaled opined that the applicant has reached maximum medical recovery. He further concluded that the applicant has had appropriate and adequate treatment for these injuries and that further therapy of this nature is not reasonable and necessary. I am persuaded by Dr. Khaled’s evidence. It appears from the records submitted by the applicant that she was receiving treatments similar to those being requested in this disputed treatment plan as early as 2015. Three years later, the applicant was still reporting the same level of improvement to her left shoulder as prior to the accident. I agree with Dr. Khaled that, from a physical perspective, the applicant has likely reached maximum medical recovery. Despite the applicant claiming that she has been diagnosed with chronic pain, she has failed to present any medical evidence that would support this.

The applicant’s entitlement to occupational therapy

15I find on the evidence that the applicant is not entitled to the treatment plan for occupational therapy (in-home occupational therapy assessment) as it is not reasonable and necessary.

16An OCF-18 dated May 3, 2018 was submitted by occupational therapist Alison LeBlanc. The purpose of the OCF-18 was to conduct an in-home occupational therapy assessment to address the following: attendant care, energy conservation, driving anxiety, sleep hygiene, activities of daily living and assistive aids/devices. The recommended goods and/or services on the OCF-18 are for a total cost of $1,496.76. The estimated duration of this plan is one week and the breakdown for the OCF-18 is as follows: planning, service ($99.75); attendant care benefit determination – completion of Form 1 ($99.75); assessment (examination), total body ($249.38); provider travel time, provider treatment ($99.75); preparation, service ($149.63); documentation, support activity ($596.50); documentation support activity for claim form ($200.00).

17On May 29, 2018 Aviva notified the applicant that the OCF-18 was not reasonable or necessary as per the IE physician report from Dr. Khaled dated May 25, 2018 and also based on the February 7, 2018 IE of Dr. Khaled (report dated March 14, 2018).

18Dr. Khaled saw the applicant for examination on February 07, 2018 and in his report dated March 14, 2018 he summarized his findings as follows:

It is apparent that this claimant is experiencing some residual pain, however the claimant should be reassured that the present symptoms are benign. The claimant should be reassured that it is safe to resume all aspects of life that she was engaged in prior to motor vehicle accident without restrictions. The insured has a good prognosis for a complete recovery…

From a physical medical perspective, the insured’s injuries are sprains and strains only without evidence of significant neurological orthopedic complications…

[S]he is independent with regard to personal activities of daily living. She is able to perform housekeeping and home maintenance duties. She is driving, as normal. She is working and performing her normal duties.

19Following a paper review IE Report dated May 25, 2018, Dr. Khaled’s opinion remained unchanged. Dr. Khaled further opined that since the accident occurred around two years previously, and that these are soft tissue injures only, the applicant should be considered to be at maximum medical recovery. Dr. Khaled concluded that since the applicant is “clearly independent and generally functions normally at home. There is no indication for an occupational therapy in-home assessment. The OCF-18 is not reasonable or necessary.” Dr. Khaled recommended that “further symptomatic relief can be achieved with independent, self-directed, home or community-based active rehabilitation”.

20The applicant submits that Aviva failed to request updated medical information to provide Dr. Khaled for his paper review and claims that a paper review was inappropriate in the circumstances. The applicant states that any improvement or deterioration in her condition was not considered by Aviva.

21Aviva submits that the entirety of the medical records for the applicant are for 2016 and 2017.

22The applicant previously disputed attendant care benefits in Tribunal Decision 19-000685/AABS³. A Form-1 dated October 5, 2016 was also completed by Ms. Toman recommending $361.75 in monthly attendant care. The Tribunal found that the amount of attendant care recommended for the impairments identified to be unreasonable and unnecessary.

23The following excerpts from Tribunal Decision 19-000685/AABS I find relevant in this case:

Aviva removed A.N. from the MIG on the basis of psychological impairments and A.N. has not demonstrated how these psychological impairments affect her daily function […] [T]here are no compelling medical records indicating that A.N.’s accident-related physical impairments are anything but minor injuries, as defined by the Schedule.⁴

A.N. reported to Dr. Khaled that she is independent with her personal activities of daily living and is able to do housekeeping and maintenance, which undermines her claim that she requires frequent rest breaks or modifications. In the home assessment report of Ms. Toman, A.N. reports no issues with grooming, feeding, mobility, driving, laundering, using the washroom, lower body dressing, exercising, taking medication or transferring into and out of the shower.⁵

A.N. had returned to her full-time position as a purchasing coordinator, which she continues to do […] A.N. reported independence with her personal and daily tasks and was able to return to working two jobs […] On the evidence, there is minimal indication that A.N.’s accident-related physical function is disabled to the point that attendant care is required.⁶

24The Tribunal noted in decision 19-000685/AABS that the applicant submitted a new OCF-18 on May 3, 2018 requesting an attendant care assessment to determine updated needs for a new Form-1. Although the OCF-18 was not in dispute at the time, the Tribunal agreed with Dr. Khaled’s paper assessment that determined that the assessment was not reasonable and necessary.

25I am not persuaded that this treatment plan for occupational therapy dated May 3, 2018, is reasonable and necessary. The issue of attendant care has been dealt with in 19-000685/AABS. The Tribunal found at the time that attendant care benefits were not reasonable and necessary. This OCF-18 in dispute requests an additional attendant care assessment without providing any new medical documentation that could alter Aviva’s previous denials for the same services. I find that Dr. Khaled’s paper review was more than sufficient for coming to the conclusion that a further in-home occupational assessment was not reasonable and necessary. The applicant did not present any new medical information that could have been provided to Dr. Khaled between February 7, 2018 and May 25, 2018. The applicant has also not provided any additional evidence that Aviva or I could have considered when determining whether this treatment plan was reasonable or necessary.

PAGE LIMITS

26The applicant raises the issue that Aviva improperly narrowed its margins in its submissions and exceeded the limit of each page. The applicant also point out that Aviva has also exceeded the overall 10-page limit. The applicant submits that practice standard margins must be utilized, and the resulting pages overage must be disregarded by the Tribunal due to Aviva’s non-compliance.

27It would appear that Aviva’s margins are set a little larger than the applicant’s and the total length of Aviva’s submissions is 10 1/2 pages. It should also be noted that Aviva’s submissions contain numerous footnotes that reduce the available space on some of the pages. In, light of this, I have not disregarded the additional half page of Aviva’s submissions.

CONCLUSION

28For the reasons outlined above, I find that the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary. Therefore, the applicant is not entitled to the disputed treatment plans.

29As no benefits are overdue, no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2O. Reg. 34/10, as amended.
3. 3A.N. v. Aviva Insurance Company of Canada 2020 CanLii 57371 (ON LAT).
4. 4Ibid at para 11.
5. 5Ibid note 3 at para 12.
6. 6Ibid note 3 at para 13.